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Wednesday, September 2, 2015

On
August 24th, Governor Rauner signed into law an amendment to the Illinois
Municipal Code that establishes a system of hearings for elected officers who are
allegedly in debt to their municipalities. PA 99-0449.

The
Municipal Code has for many years contained a provision that prohibited a person from
holding an elected municipal office if that person was in arrears in the
payment of a tax or other debt owed to the municipality. The issue usually
came up when a person was elected to office – either the municipality refused
to swear the person into office due to the debt, or a quo warranto lawsuit was filed against the official to remove the
official from office.

However,
in 2008, the Illinois Supreme Court ruled that an arrearage in a municipal debt
was proper grounds for an electoral board to remove a candidate’s name from
the ballot. Since the Election Code requires all candidates to file a sworn
statement of candidacy form in which the candidate must state, under oath and
in the present tense, that he or she is qualified
to hold the office sought (not that he or she will be qualified at a later date), the office-holding indebtedness
law was also a candidate-eligibility law that can (and did) result in the
termination of some municipal candidates’ campaigns prior to election day. Cinkus v. Stickney Muni. Officers Elec. Bd.

In
2013, the General Assembly amended the Municipal Code to address the Cinkus ruling to remove indebtedness issues from the jurisdiction of electoral boards and to
move the timing of enforcement back to where it used to be – at the time of the
oath of office, or during the entire term of office. That provision was further amended last week by enactment of PA 99-0449. The new law now states that an elected official can be disqualified from continuing to hold an office, and the office immediately becomes vacant, only after a hearing officer finds that the official owes a debt to the municipality and the debt is not paid in full within 30 days of the judgment, or within 30 days of a court order affirming the judgment if the official seeks judicial review.

The
law establishes the following procedures:

The municipal clerk must provide, by personal
service, a written notice to the official stating that he or she is in
arrears in a debt to the municipality, that the debt must be paid in full
within 30 days, that the official may contest the debt, and that the
official must send written notice to the municipal clerk within 30 days if
he or she intends to contest the debt.

If the official fails to repay the debt within
30 days of receiving the notice and
fails to timely request a hearing to contest the debt, the official is automatically
disqualified from holding the office and the office immediately becomes
vacant.

If the official timely submits a notice that he
or she is contesting the debt, a hearing shall be conducted within 30 days
of receiving the official’s notice.

The municipality must appoint a hearing officer
to preside over the hearing and to make factual findings and legal
determinations based on all testimony and evidence relevant to the proceedings.

The hearing officer’s final written judgment
must be served on the official during the last day of hearings.

Within five days of receiving the final
administrative judgment, the municipal official may seek judicial review
in the circuit court, which would stay the official’s obligation to repay
the debt until after the reviewing court enters a judgment on appeal.

If the court affirms the hearing officer’s
original judgment, the official then must repay the debt within 30 days of
when the reviewing court entered its judgment.

The
statute expressly defines the term “debt” to mean “an arrearage in a definitely
ascertainable and quantifiable amount after service of written notice thereof,
in the payment of any indebtedness due to the municipality, which has been
adjudicated before a tribunal with jurisdiction over the matter. A municipal
official is considered in arrears of a debt to a municipality if a debt is more
than 30 days overdue from the date the debt was due.”